THOMAS ADAMS, ET AL., PETITIONERS V. UNITED STATES OF AMERICA, ET
AL.
No. 87-347
In The Supreme Court Of The United States
October Term, 1987
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit
Memorandum For The United States In Opposition
Petitioners, veterans who served in Vietnam and their wives and
children, allege that they were injured as a result of the exposure of
service members to the herbicide "Agent Orange" and they contend that
the courts below erred in concluding that their claims against the
government are barred by the discretionary function exception to the
Federal Tort Claims Act (FTCA), 28 U.S.C. 2680(a), and the rule of
Feres v. United States, 340 U.S. 135 (1950).
1. Petitioners challenge one of nine related decisions issued by
the Second Circuit on April 21, 1987, in the Agent Orange
multidistrict litigation (Pet. App. 21a-27a). In doing so, they
question the Second Circuit's reasoning in another of those nine
related decisions, which more fully elucidates the court's grounds for
rejecting petitioners' claims (id. at 28a-44a). In this latter case,
a number of veterans and their spouses and children, known as the
"Aguiar plaintiffs" (In re "Agent Orange" Product Liability
Litigation, 818 F.2d 145, 160 (2d Cir. 1987)), sued the government
under the FTCA in 1984. The veterans alleged that they suffered
various ailments as a result of their exposure to Agent Orange in
Vietnam; their wives alleged that they had experienced miscarriages
because their husbands had been exposed to Agent Orange; and their
children alleged that they suffered birth defects resulting from their
fathers' exposure to Agent Orange.
a. The district court held that the claims of the Aguiar plaintiffs
were barred by the rule of Feres. In re "Agent Orange" Product
Liability Litigation, 603 F. Supp. 239 (E.D.N.Y. 1985). The court
first held that "(t)here is no question that the veterans' claims
against the government for injuries arising from exposure to Agent
Orange while in Vietnam are 'incident to service' and barred by the
Feres doctrine" (id. at 243). The court then rejected the plaintiffs'
attempts "to circumvent the Feres bar through 'artful pleading'" (id.
at 245). Concerning the plaintiffs' preinduction claims -- that
"prior to the induction of many of the servicemen who served in
Vietnam, the United States knew or should have known of the hazards
posed by exposure to Agent Orange and negligently failed to warn
servicemen or take precautions for their safety" (ibid.) -- the court
concluded that any injury resulting therefrom was so related to the
veterans' military service that it occurred incident to service.
Concerning their post-discharge claims -- that the government "failed
to warn plaintiffs and see to it that they were properly treated and
compensated for any injury sustained" as a result of exposure to Agent
Orange (id. at 243) -- the court similarly concluded that their claims
"were 'inseparably entwined' (sic) with their military service and so
barred by Feres." Id. at 244 (quoting Healy v. United States, 192 F.
Supp. 325, 328 (S.D.N.Y.), aff'd, 295 F.2d 958 (2d Cir. 1961)). The
court added that the claims were likely barred by the discretionary
function exception as well, noting that "the decision to use
herbicides in Vietnam was made by President Kennedy and had the
military objectives of clearing underbrush and jungle that provided
cover for the enemy and of denying food for opposing forces who were
living off the land" (603 F. Supp. at 244).
With respect to the claims of the veterans' wives and children, the
district court noted that the government's evidence showed that "'no
laboratory nor epidemiologic evidence exists at this time that is
sufficient, to a reasonable degree of certainty or probability, to
link embryonal deaths or birth defects to paternal exposure to
herbicides while serving in Vietnam'" (603 F. Supp. at 246 (quoting
affidavit of Dr. Zena Stein)). The court concluded that "(p)laintiffs
have produced no evidence of any probative value to contradict the
government's overwhelming showing of no present proof of causation"
(id. at 247).
Petitioners filed a complaint that is "virtually identical" to the
complaint filed by the Aguiar plaintiffs (Pet. App. 18a). Relying on
its prior decision, the district court dismissed the veterans' claims,
granted summary judgment on the wives' claims' and dismissed the
children's claims without prejudice (id. at 20a).
b. The court of appeals held that the claims of the Aguiar
plaintiffs are barred both by the rule of Feres and the discretionary
function exception (Pet. App. 28a-44a), after noting that the decision
to use Agent Orange, a military decision made by the President with
the advice of Congress, is the sort of decision that the courts should
hesitate to review (id. at 37a-39a). The court found "little
difference between these doctrines as they relate to the facts of the
instant case. * * * Both preclude judicial 'second-guessing' in FTCA
litigation of discretionary legislative and executive decisions such
as those that were made concerning Agent Orange" (id. at 40a).
With respect to the veterans' claims for in-service injuries, the
court found them to be a "classic case" for application of Feres (Pet.
App. 41a). "At issue is a decision of the veterans' highest military
superiors that was designed to help the veterans in fighting the armed
conflict in which they were engaged" (ibid.). The court also agreed
with the district court that the veterans' pre-induction and
post-discharge claims were so intertwined with their military service
that they are barred by Feres (id. at 40a-43a). The court added that
there was no warrant to permit artful pleading to allow the veterans
to bring their claims here because "the weight of present scientific
evidence does not establish that Agent Orange injured military
personnel in Vietnam" (id. at 43a), and noted that "(a)pplication of
the discretionary function rule leads ineluctably to the same result"
(id. at 41a).
In its opinion specifically addressing the claims of petitioners
the court of appeals held that the claims of the veterans' wives and
children were also barred (Pet. App. 21a-27a). The court noted that
it would be anomalous for "'a serviceman-husband performing his
military duty * * * (to) be denied recovery against the Government
whose employee's negligence may have caused him serious injury, while
his spouse is allowed recovery as a consequence of the same set of
facts.'" Id. at 25a (quoting Harrison v. United States, 479 F. Supp.
529, 535 (D. Conn. 1979), aff'd, 622 F.2d 573 (2d Cir.) (Table), cert.
denied, 449 U.S. 828 (1980)). As in United States v. Shearer, 473
U.S. 52 (1985), the court concluded (Pet. App. 26a), a claim on behalf
of a spouse or child challenging the government's decision to use
Agent Orange in Vietnam would call into question military decisions,
and hence is barred by the rule of Feres. The court added that
"(w)here, as here, the military decision is of such a nature that it
properly may be termed a discretionary function, denial of recovery by
both military and nonmilitary personnel is doubly warranted" (id. at
26a-27a).
2. The decision below is correct and does not conflict with any
decision of this Court or another court of appeals. Accordingly,
review by this Court is not warranted.
a. The court of appeals correctly concluded that petitioners'
claims are barred by the discretionary function exception. As the
court of appeals stated (Pet. App. 39a-40a), the discretionary
function exception serves to insulate governmental policy-making,
including (perhaps especially including) discretionary military
decisions, from judicial scrutiny. /1/ There can be no question that
the decision to use Agent Orange in Vietnam was a policy decision of
the sort covered by the discretionary function exception. Dalehite v.
United States, 346 U.S. 15, 37 (1953). And, as the court of appeals
noted (Pet. App. 41a), numerous courts have held that the exception
bars claims alleging failure to warn where the exercise of discretion
was involved. Ford v. American Motors Corp., 770 F.2d 465, 467 (5th
Cir. 1985); Cisco v. United States, 768 F.2d 788, 789 (7th Cir.
1985); Begay v. United States, 768 F.2d 1059, 1066 (9th Cir. 1985);
Shuman v. United States, 765 F.2d 283, 291 (1st Cir. 1985); General
Public Utilities Corp. v. United States, 745 F.2d 239, 243, 245 (3d
Cir. 1984), cert. denied, 469 U.S. 1228 (1985); Green v. United
States, 629 F.2d 581, 585-586 (9th Cir. 1980). The decisions
petitioners challenge -- whether to use Agent Orange to assist in
combat and whether to warn veterans of its possible harmful effects --
are quite plainly "of the nature and quality that Congress intended to
shield from tort liability." United States v. S.A. Empresa De Viacao
Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).
Futhermore, as the court of appeals concluded, "(t)he very paucity of
proof concerning the possible deleterious effects of Agent Orange made
the decision whether to issue a nationwide health warning even more
clearly an exercise of discretion" (Pet. App. 43a).
Petitioners concede that the decision to use Agent Orange in
Vietnam "could very well have been a discretionary function" (Pet.
26). They nevertheless contend that their claim is not barred by the
discretionary function exception because the negligence they allege
"relate(d) not to the making of that decision but solely to the manner
in which that decision was carried out" (ibid.). They allege that the
government was negligent because "(t)he state of the art under war
conditions was such that certain methods of spraying, use of
prophylatic (sic) and protective gear, medical monitoring and other
steps could have been taken to drastically reduce the exposure to, and
risk of harm from, Agent Orange, without adversely affecting our
soldiers' capability to do battle" (id. at 8). However, we think that
it is perfectly plain that decisions relating to matters such as what
sorts of gear combat personnel can wear without adversely affecting
their capability to do battle are discretionary decisions to be made
by military decision-makers, and are not subject to second-guessing by
way of tort suits. /2/ Accordingly, petitioners' claims are barred by
the discretionary function exception.
b. Because petitioners' claims are plainly barred by the
discretionary function exception, this case does not present an
opportunity to overrule Feres, which is what petitioners' primarily
seek (Pet. 11-14). Of course, we think that Feres was correctly
decided. In any event, there is no good reason to revisit this
Court's construction of the FTCA, made shortly after it was enacted,
nearly four decades later. Feres is settled law under the FTCA and,
if the Court erred in Feres, then, as it noted, "Congress possesses a
ready remedy" (340 U.S. at 138). Moreover, this Court reaffirmed
Feres just last Term in United States v. Johnson, No. 85-2039 (May 18,
1987).
Nor is there any basis for review of the lower courts' rejection of
the various exceptions to Feres that petitioners seek to create. With
respect to the veterans' claims based on exposure to Agent Orange in
Vietnam, petitioners contend (Pet. 18-19) that Feres should not bar
claims because they have been denied veterans' benefits. They allege
that "to say administratively that the injuries are not
service-connected and to say in court that they are incident to
service smacks of inconsistency" (Pet. 19). As the court of appeals
recognized (Pet. App. 42a), that argument "is a distortion of the
Government's position." The government has consistently contended, as
the court of appeals concluded (id. at 43a), that the ailments that
petitioners suffer were not caused by exposure to Agent Orange, and
their claims for veterans' benefits were denied on that basis. But,
assuming arguendo that they were harmed by exposure to Agent Orange in
Vietnam, then a tort suit seeking a remedy for that harm is barred by
Feres.
As both of the courts below concluded, there is no merit to
petitioners' arguments (Pet. 17-23) that Feres does not bar their
claims based on pre-induction and post-discharge negligence barred.
The courts below were clearly correct in deciding that petitioners'
pre-induction claims are inextricably intertwined with their
in-service claims, and petitioners cite no appellate case (and we know
of none) finding liability in such circumstances. As for the
post-discharge claim, this case is clearly different than United
States v. Brown, 348 U.S. 110 (1954), where negligent treatment in a
Veterans' Administration hospital following discharge was found
actionable despite Feres. The government's alleged negligence here is
not a clearly separable wrong, such as a subsequent
negligently-performed operation, but is merely a failure to warn of
dangers encountered during active service. A number of courts of
appeals have rejected similar attempts to circumvent Feres. Hamilton
v. United States, 719 F.2d 1, 1 (1st Cir. 1983); Gaspard v. United
States, 713 F.2d 1097, 1101 (5th Cir. 1983), cert. denied, 466 U.S.
975 (1984); Lombard v. United States, 690 F.2d 215, 220-223 (D.C.
Cir. 1982), cert. denied, 462 U.S. 1118 (1983); Laswell v. Brown, 683
F.2d 261, 265-267 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983);
Henning v. United States, 446 F.2d 774, 777-778 (3d Cir. 1971), cert.
denied, 404 U.S. 1016 (1972).
Two counts of appeals have held that claims alleging post-discharge
failures to warn about exposure to radiation encountered during
military service were not barred by Feres. Cole v. United States, 755
F.2d 873, 876-880 (11th Cir. 1985); Broudy v. United States, 722 F.2d
566, 569-570 (9th Cir. 1983). In both of those cases, however, the
complaints were ultimately dismissed after remand as barred by the
discretionary function exception. Broudy v. United States, Civ. No.
79-2626 (C.D. Cal. Dec. 17, 1985); Cole v. United States, 635 F.
Supp. 1185, 1190-1191 (N.D. Ala. 1986); see also In re Consolidated
United States Atmospheric Testing Litigation, 616 F. Supp. 759,
771-777 (N.D. Cal. 1985), aff'd, 820 F.2d 982 (9th Cir. 1987). /3/
accordingly, there is no reason to consider whether claims based on
post-discharge failures to warn are barred by Feres, since such claims
are barred in any event by the discretionary function exception.
Finally, there is no reason to review the court of appeals' holding
that the claims brought by the wives and children of veterans are
barred. Those claims, which petitioners acknowledge were framed "to
take advantage and use every possible mechanism to plead around the
'incident to service' doctrine" (Pet. 5), are, as the district court
concluded (603 F. Supp. at 246, 247), without any scientific basis.
Furthermore, there is no conflict in the circuits; the other courts
of appeals to consider the matter have held, like the court below,
that such claims are barred by Feres. Hinkie v. United States, 715
F.2d 96, 98-99 (3d Cir. 1983), cert. denied, 465 U.S. 1023 (1984);
Gaspard v. United States, 713 F.2d at 1101-1102; Mondelli v. United
States, 711 F.2d 567, 568-570 (3d Cir. 1983), cert. denied, 465 U.S.
1021 (1984); Lombard v. United States, 690 F.2d at 223-226; Scales
v. United States, 685 F.2d 970, 973-974 (5th Cir. 1982), cert. denied,
460 U.S. 1082 (1983); Monaco v. United States, 661 F.2d 129, 133-134
(9th Cir. 1981), cert. denied, 456 U.S. 989 (1982); cf. West v.
United States, 729 F.2d 1120 (7th Cir. 1984), aff'd, 744 F.2d 1317
(1984) (dismissal of claims on behalf of children affirmed by an
equally divided court), cert denied, 471 U.S. 1053 (1985).
Accordingly, there is no basis for review of those claims.
It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.
DONALD B. AYER
Acting Solicitor General /4/
DECEMBER 1987
/1/ This Court has repeatedly stated that "'(o)rderly government
requires that the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not to
intervene in judicial matters.'" Chappell v. Wallace, 462 U.S. 296,
301 (1983) (quoting Orloff v. Willoughby, 345 U.S. 83, 94 (1953)). It
has also noted: "(I)t is difficult to conceive of an area of
governmental activity in which the courts have less competence. The
complex, subtle, and professional decisions as to the composition,
training, equipping, and control of a military force are essentially
professional military judgments, subject always to civilian control of
the Legislative and Executive Branches." Gilligan v. Morgan, 413 U.S.
1, 10-11 (1973) (emphasis in original).
/2/ The case on which petitioners rely (Pet. 27-28) in arguing that
the discretionary function exception does not bar their claims, Indian
Towing Co. v. United States, 350 U.S. 61 (1955), is clearly
inapposite. The alleged negligence there -- not keeping a lighthouse
operational -- is simply not comparable to decisions relating to how
to conduct a war. Moreover, the government did not allege that the
discretionary function exception barred the suit (id. at 64), so that
exception was not at issue.
/3/ The district court had concluded (603 F. Supp. at 244) that
Broudy and Cole are distinguishable from this case for several
reasons. "First, the servicemen in these cases were exposed to such
large doses of radiation as to approach the level of intentional
experimentation * * * . Second, they involved exposure to radiation,
a substance considered far more likely to cause adverse health effects
than was Agent Orange. Finally, imposing on the Veterans'
Administration a duty to warn of the uncertain consequences of Agent
Orange exposure might well encounter another hurdle -- the
discretionary function exception * * * ."
/4/ The Solicitor General is disqualified in this case.